1 Brewer v. Dyer, 7 Cush. 337; Mellen v. Whipple, 1 Gray, 323. But see Exchange Bank v. Rice, 107 Mass. 37 (1871), in which some doubt is thrown upon the authority of Brewer v. Dyer.
2 Dutton v. Pool, 1 Vent. 318; s. c. 2 Lev. 210. Of this case Lord Mansfield said, in Martyn v. Hind, Cowp. 443; s. c. 1 Doug. 146: "It is difficult to conceive how a doubt could be entertained in the case of Dutton v. Poole." See also Rookwood's Case, Cro. Eliz. 164, which was similar in its circumstances. Sometimes these cases are put upon the ground of nearness of relationship, as by Scroggs, C. J., in 2 Lev. 211, in which he says: 11 There is such apparent consideration of affection from the father to his children, for whom nature obliges him to provide, that the consideration and promise to the father may well extend to the children." But it is rather the special interest that children have in the property, than the affection, which creates the true privity of consideration in these cases. See also Levet v. Hawes, Cro. Eliz. 619, 652; Bourne v. Mason, 1 Ventr. 6.
3 Tweddle v. Atkinson, 1 B. & S. 393; Addison, Contracts, 1040 (6th ed.); Dicey, Parties, 84; Griffith v. Ingledew, 6 Serg. & R. 429, 442; Metcalf, Contracts, 208; 1 Smith's L. C. 142 (6th Eng. ed.). See Exchange Bank v. Rice, 107 Mass. 37, 42.
§ 487. It is proper here to consider that class of cases where orders are given upon depositaries, such as wharfingers and warehousemen, to deliver specific goods sold to the purchaser. It is the custom for the vendor to give these orders in writing to the vendee, who sends them to the depositary for acceptance; and when accepted by him, he becomes the bailee for the purchaser.1 But it would seem, in these cases, to make no difference, as to the legal result, whether the order be sent by the purchaser or by the seller. In either case, the acceptance of the order, and the transference on the books of the depositary, would vest the title to the goods in the purchaser.2 A distinction is, therefore, to be observed between these cases in which the order relates to specific goods, which must be distinguished from all other similar goods, and cases where the order relates to a sum of money, which may be paid in any coins of the country. In the former case the order gives a special interest in certain definitely ascertained articles, and in the latter it could only occasion a general responsibility for the sum stated; and this distinction may be the reason for the different rule which obtains in England in the two classes of cases.
§ 488. In all cases of novation where, by assent of all parties, there is a new promise between the substituted parties, and an extinguishment of the old debt, the contract is not an undertaking to pay the debt of a third person, within the meaning of the statute of frauds.1 And .where the novation is complete, it is not affected by fraud in the original debtor. Thus, if A. buys property of B. through B.'s fraudulent representation, and gives a note to C. for the full amount, in discharge of a debt due from B. to C, the latter, if innocent of the fraud, may recover the whole amount of A.'s note against him.2
1 Scudder v. Worster, 11 Cush. 573; Gillett v. Hill, 2 Cr. & Mees. 536; Harman v. Anderson, 2 Camp. 243; Holl v. Griffin, 3 Moo. & S. 732; s. c. 10 Bing. 246; Whitehouse v. Frost, 12 East, 621; Lickbarrow v. Mason, 6 East, 20, n. See post, § 1031; Hammond v. Anderson, 1 Bos. & Pul. N. R. 69.
2 In Bryans v. Nix, 4 M. & W. 791, Parke, B., says: "If the intention of the parties to pass the property, whether absolute or special, in certain ascertained chattels is established, and they are placed in the hands of a depositary, no matter whether such depositary be a common carrier, or shipmaster employed by the consignor, or a third person, and the chattels are so placed on account of the person who is to have that property, and the depositary assents, it is enough; and it matters not by what documents this is effected; nor is it material whether the person who is to have the property be a factor or not; for such an agreement may be made with a factor, as wel\ as any other individual." Salter v. Woollams, 3 Scott, N. R. 65; 2 Man & Grang. 650.
1 Bird v. Gammon, 3 Bing. N. C. 883; Read v. Nash, 1 Wils. 305. 2 Morris v. Whitmore, 27 Ind. 418 (1866).